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Ruling questions protected use of the name 'Windows' | |
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| Time: 15:52 EST/20:52 GMT | News Source: Seattle PI | Posted By: Robert Stein | ||
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Windows, one of the best-known trademarks in the world, may not be a name Microsoft Corp. can own and use exclusively, a federal judge ruled yesterday. In a narrow, preliminary ruling that could change at trial, Chief U.S. District Judge John Coughenour wrote that there are "serious questions regarding whether 'Windows' is a non-generic name and thus eligible for the protections of federal trademark law." He made the ruling in a case Microsoft brought against Lindows.com Inc., a 6-month-old San Diego start-up trying to introduce an operating system called Lindows. | ||
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| #1 By 1401 (24.74.52.178) at 3/16/2002 4:18:18 PM |
| What about the name Apple then? These f'ing judges and politicians and lawyers are insane. |
| #2 By 2 (12.226.195.102) at 3/16/2002 4:21:33 PM |
| good point |
| #3 By 3653 (68.53.80.99) at 3/16/2002 4:59:23 PM |
|
Ok, some bright businessperson simply needs to take one of the "free" open-source operating systems and simply RENAME it to be "Aple Operating System" and/or "Suhn Hillarious".
This case is OVER. MS wins. |
| #4 By 3339 (65.198.47.10) at 3/16/2002 6:35:14 PM |
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"whether 'Windows' is a non-generic name and thus eligible for the protections of federal trademark law..."
Are you guys serious? In what way are Apples (fruit), Suns (astronomy), Java (coffee), and Oracles (fortune tellers) generic to computing? Come on. On the other hand, how common is the word "Word" to word processor programs, "Office" to office suites, "SmartPhone Operating System 2002" (they haven't tried to trademenrk this, but I would say that had to the RPFJ in its old state) to smart phones with operating systems that come out in 2002, and, most importantly, "Windows" to windows-based graphical operating sytems and applications. In each case, there are many applications with many references to or implementations in some form of these words. For Microsoft, the list goes on and on... There are few exceptions but for "Outlook," "Excel," "Mira" (if they keep that name), "Encarta" and others... Other companies do it too but in smaller forms (say, "HyperCard" by Apple, for example, and that's not even a good one) in which they don't try to retaliate against an INDIVIDUAL company--it would be better to attack all companies who you think violate your trademark if you do at all. To say that Apple, Sun, and Oracle don't have specific rights to those particular names, which they HAVE protected, and are UNIQUE in the industry is laughable, L-A-U-G-H-A-B-L-E! -- even if under some small circumstances, they could potentially face the same issues for other trademarks they hold (but certainly not their company names and Java), and rightly so, if a particular company did have grounds and they tried to bar that company. This post was edited by sodajerk on Saturday, March 16, 2002 at 18:54. |
| #5 By 3339 (65.198.47.10) at 3/16/2002 7:31:12 PM |
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stu, the other examples don't pertain to this case, but it shows a trend and in each case it holds. There are other products with Windows either at the begining or end of the name--Microsoft hasn't gone after them. (The same with Word--WordPerfect, and a million old WP programs that have died; the same is true of Office--StarOffice, etc.) Microsoft does not find them in violation of their trademark, because they have to concede that they are using generic words as their names, in other words they are appropriate and non-violating names because it makes sense to use product names that make reference to a ubiqitous part of the product.
Timing has less to do with it than enforcement, and in some cases, Microsoft hasn't been first. But the complete lack of enforcement of violation of other products that actually use words or parts of their names, makes it difficult to maintain a strong case against a made-up word that isn't actually "windows." I particularly like that you point out that Microsoft frequently has to put Microsoft(tm) ProductName (tm). That tells me it more frequently leans toward a generic name, that could easily be confused or indistinguishable from other products, or simply product categories, so that they need to qualify product names. It's not ANY Office, it's Microsoft Office. Its not X Windows or any other windowing GUI, it's Microsoft Windows. I don't know what your point is about Lindows being non-generic--trademarkable names are supposed to be non-generic, and this name makes specific internal mention to what it is: Linux with a Windows emulation--two generic terms; the name is also a unique term since it's a made up word. It's their argument that MS has no rights to Windows whatsoever because it is generic and non-enforced and not even enforceable. The generic argument means that even though MS was granted the trademark, this was incorrect to do so, because a company cannot appropriate a generic term for its sole use--the lack of enforcement by Microsoft demonstrate that in some respects they concede this. And, by the way, I think #8 was mostly refering to the complete fallacy and idiocy of your second paragraph in #7--I see you didn't rebutt my argument: that Apple, Sun, Java, Oracle, and others are not generic terms--Java is a unique name which Sun certainly protects its rights to and controls how others can use it. So there is no ridiculous scenario where MS loses and then takes it s case around to every other company they compete against and strip away their trademark rights. I think just such an argument is what he means by "doesn't make you sound wise."--this paragraph was for ekapshi's misguided sake. By the way, I concede that Lindows is trying to refer to Windows, and that makes the case a bit more difficult, but I do appreciate and think it's valid to attack MS's trademarks. And having examples of products like xpskins, windowblinds, WinAmp (in particular) exist in the market place without being prosecuted by Microsoft clearly demonstrates that they are attacking Lindows just because it is a Linux product. This post was edited by sodajerk on Saturday, March 16, 2002 at 20:35. |
| #6 By 3339 (65.198.47.10) at 3/16/2002 8:15:55 PM |
| Personally, If I were Lindows and I ultimately lost, I would change the name to: LinD'oh!s. It's a little ugly, but carries the same meaning (if not more so), and would be hard to prosecute. |
| #7 By 3339 (65.198.47.10) at 3/16/2002 8:46:30 PM |
|
It was idiotic to make that suggestion, even if posed as a question, because it shows that you do not understand that those other names are entirely and completely unique (you are still calling them generic, even though they are uniquely applied within a new and different market; after all, all words are generic except pronouns, specific names, and made up words). If you were unable to see this, that leads me to believe you wouldn't understand this issue at all.
You think X Window System Version 11 is the only example? I'm sorry but there are hundreds more -- some with generic reference and some with specific reference to Windows but as a ubitiquous system (I'm particularly thinking of the various skinning UI tools and I love the WinAmp example--I guess the second syllable is more important than the first, is that the legel argument?). And back to this new assertion regarding X.11, are you saying that making it plural now destroys the generic quality of the word and makes it a unique name? I think that's about the only argument Microosft can make and that seems a weak one. That would be like GoodYear renaming themselves Tires--is that any less generic then naming themselves Tire? This post was edited by sodajerk on Saturday, March 16, 2002 at 20:58. |
| #8 By 3339 (65.198.47.10) at 3/16/2002 9:07:15 PM |
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Your Mac example: Apple has trademarks for Apple, the Apple logo, Macintosh, Mac and Mac OS. Any other product which incorporates that name as part of its name, or a part of these names is legal in Apple's eyes. They do not have to enforce it beyond that as long as they remain consistent to that. They would enforce their trademark if the product took away from or impaired anything falling under their trademarks, but Lindows is Linux and Wine and has nothing to do with the performance of Microsoft or Windows products.
Moreover, I'm not certain that Apple would sue if that was the case. And besides, Apple has a history of using Mac as a prefix to products, but Microsoft doesn't use "dows" as a suffix. It's a bit of a different scenario--and it shows that Apple is far more inventive and thoughtful about naming their products, whereas, it's pretty clear Microsoft has been trying to appropriate the most basic terms for years. (I think you are forgetting that it was Microsoft that sued Lindows first, and that Lindows is arguing its an invalid trademark. If Apple sued someone and didn't have a history of allowing products to use Mac as part of the name, but prosecuting when the product detracted from or impaired the Mac OS, then maybe there would be a case, but I thought people hated Apple for their vicious enforcement of their trademarks, patents, and copyrights--Apple has a clear history of prosecuting when their patents and IP are appropriated for other uses, and prosecuting their trademarks when they impair their own products. I realize it's a muddy issue, and am not predicting anything, but find it appropriate that it has blown up in MS's face.) I apologize if I used a product name that is just a web site; I was trying to focus on applications because it would be likely they are trademarked, whereas that's not necessarily the case for web sites. "Perhaps Microsoft did not object to the use of the term WinAmp for the audio player application but they do object to the term Lindows because notonly does it violate their trademark, ir does so with the intent of deriving value from this name. " This statement just goes in circles completely ignoring the WinAmp example. What is the value of naming WinAmp WinAmp--doesn't it too conjure images of Windows? Can you admit that, just as Lindows specifically refers to Windows, Microsoft is specifically targeting Lindows because it is Linux? This post was edited by sodajerk on Saturday, March 16, 2002 at 21:27. |
| #9 By 3339 (65.198.47.10) at 3/16/2002 9:31:38 PM |
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"I NEVER once claimed otherwise. I only think this is part of the issue and in no ways is illegal." To enforce your trademark only because of the specific nature of the product is illegal, or at least inappropriate trademark maintenance--in that case, you aren't preserving the uniqueness of a name, but are using leverage to prevent competition. Trademark maintenance is about protecting identity, not about protecting marketshare. To enforce your trademark only selectively weakens your trademark claim.
"However, your argument with Mac only proves my point that Microsoft doesn't have a problem with WinAmp or WinZip using the "Win" moniker as part of their name." But that is not a defense for it being a generic term which is the issue. Those examples still provide evidence that it is a generic and acceptable usage. Even if Lindows has a bad case, it has reversed on Microsoft, and they too have a bad case. In no case, could a Mac example be in reference to anything other then the Mac platform, but what the hell is WinAmp referring to--I don't know that it's Windows specifically, particularly since they make the product for the Mac as well. This post was edited by sodajerk on Saturday, March 16, 2002 at 22:21. |
| #10 By 3339 (65.198.47.10) at 3/16/2002 9:48:46 PM |
|
"They do, however, have a problem with a competing product using this moniker which is very reasonable." I'm not sure of this. I think they can only fall back on product confusion (which I think is a weak argument but can probably be made to some degree) and either disparaging or impairing the actual product--simply by competing with it, in no way impairs, changes, or diparages Windows in any real way. Maybe I'm wrong about that, but I would say that is selective targeting and poor trademark maintenance. After all, this is emulation, not running windows, et al.
Anyway, I think we've enumerated a lot of the issues of this case, and your #22 is largely accurate---although there is a countersuit as well, this is not just a defense of Lindows, so I imagine this needs to be resolved BEFORE the infringement case, and I also think there's a good case for it being a generic term. After that, they can make the argument that they don't infringe on MS's trademark--it's not windows, it's lindows; there is no product confusion; they haven't protected their trademark; etc. So it's a bit better for them then a stay of execution. But I'm glad to see you've backed off on the classic Microsoft defense of: if they attack us, the whole world goes to sh1t and no one can possibly maintain any trademark rights when in fact it usually proves to be an issue individual to Microsoft--the "protect-Microsoft-in-order-to-protect-the-world argument"--one of the classically idiotic arguments that comes up. This post was edited by sodajerk on Saturday, March 16, 2002 at 23:19. |
| #11 By 2332 (129.21.145.80) at 3/17/2002 3:08:13 AM |
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When a person says "I use Windows," everybody knows exactly what they mean. It's as simple as that.
Trademark infringement occurs when one company uses a name that dilutes the name of a competitor’s product or service, thereby confusing consumers. Lindows does just that. It's a pretty clear cut case, and if this wasn't Microsoft, it would be over by now. |
| #12 By 2 (12.226.195.102) at 3/17/2002 12:34:43 PM |
| There is such a thing as Corel WordPerfect Office 2000...etc. |
| #13 By 135 (209.180.28.6) at 3/17/2002 6:07:18 PM |
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#35 - One of the preconditions in trademark law is that the products have to be in similar markets. If Snapple was making computers, and not soft drinks your point would make more sense.
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| #14 By 3339 (65.198.47.10) at 3/18/2002 2:20:57 PM |
| #34, that's a specific rule about trademark maintenance. Which raises an interesting point, this rule only applies to company names, not products. So isn't MS diluting its on trademark with Windows Media Player which isn't specific to the windows platform and has nothing to do with windows. It seems to me they are trying to make it a generic term themselves, if not a meaningless one. Also, it seems they are trying to "leech" off their own ubiquity as well, if not create confusion. I can't think of other examples like this: Apple gets close, but their Mac related products are actually using that term as a prefix or suffix and are themselves trademarked and specifically relate to Macs (iMac, PowerMac, MacManager), all the other products actually use Apple (Apple Remote Desktop, AppleWorks). I'm always confused about how MS is using WMP/WMF -- they've got Windows Media trademarked, right, but not the Player part? So they've actually got two trademarks (and two generic terms) prefixing another generic term in the case of Windows Media Player. Anyway, using a product name as an adjective (and separate word) to an unrelated product seems like it could be a potentially bad move for MS. |
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